Yuhasz v. Mohr, No. 3--173A1

• Docket Nº: No. 3--173A1
• Citation: 159 Ind.App. 478, 307 N.E.2d 516
• Case Date: March 06, 1974
• Court: Court of Appeals of Indiana

Page 516

307 N.E.2d 516 159 Ind.App. 478 John E. YUHASZ, Appellant (Plaintiff Below),
v.
Nancy Zacharias MOHR, as Administratrix of the Estate of
Henry Zacharies, Deceased, Appellee (Defendant Below). No. 3--173A1. Court of Appeals of Indiana, Third District. March 6, 1974.

[159 Ind.App. 479]

Page 517

Ronald V. Aungst, Lyons, Aungst & Guastella, William G. Conover, Conover, Claudon & Billings, Valparaiso, for appellant (plaintiff below).

Samuel J. Furlin, Spangler, Jennings, Spangler & Dougherty, Gary, for appellee (for defendant below).

GARRARD, Judge.

The central issue in this case is whether the plaintiff, John E. Yuhasz (Yuhasz)

Page 518

was an employee of a corporation known as Ace Store Fixtures, Inc. (Ace) at the time he received certain injuries and was thereby precluded from bringing a common law action for damages against his fellow employee. ¹ When the case was tried, the parties agreed to submit first to the jury the question of whether Yuhasz was an independent contractor or an employee. The jury returned a verdict adverse to plaintiff on the issue, and judgment was thereafter entered for defendant. A timely motion to correct errors was overruled and this appeal followed.

Before proceeding to the employment issue, three other questions raised by the motion to correct errors should be disposed of.

[159 Ind.App. 480] During the course of pretrial discovery, Yuhasz gave notice that he desired to take the deposition of one Dr. Leon Armalavadge by videotape recording for use at the trial. The defendant moved for a protective order pursuant to Rule TR. 26(C), IC 1971, 34--5--1--1, to prohibit videotaping the deposition. The protective order was granted, and a subsequent motion to reconsider was denied. These actions by the trial court are the first asserted errors.

However, it is admitted that the deposition related solely to damages. Since the jury found against plaintiff on the issue of liability, the damage issues are not relevant to the appeal. Accordingly, any potential error in granting the protective order in question is harmless. ² See: Chestnut v. Southern Indiana R. Co. (1901), 157 Ind. 509, 62 N.E. 32; Kosanovic v. Ivey (1968), 142 Ind.App. 481, 235 N.E.2d 501; Adkins v. Poparad (1943), 222 Ind. 16, 51 N.E.2d 476.

The second error asserted is that defendant improperly referred to the Indiana Workmen's Compensation Act both during the trial and in final argument. These issues were waived by plaintiff's failure to object to the reference that was made, ³ and his failure to include the final argument in the record. ⁴

[159 Ind.App. 481] Next, as a specification that the verdict was contrary to law, Yuhasz's motion to correct errors asserts that the Industrial Board is without jurisdiction of this case, and if the verdict is permitted to stand, Yuhasz will be left without a forum. The contention is without merit. Furthermore, no sound purpose would be served by an exposition of the principles of law involved. It is sufficient that a reading of the record clearly discloses that Yuhasz has filed with the Industrial Board his Form 9 application regarding this occurrence and these same injuries. ⁵

Page 519

Finally, Yuhasz asserts that the jury's verdict is contrary to the evidence and is contrary to law. This presents the single appealable issue as to whether Yuhasz was necessarily an independent contractor under the evidence presented. ⁶ In considering this question, we examine the evidence most favorable to the defendant, together with all the reasonable inferences which may be drawn therefrom. Hinds v. McNair (1955), 235 Ind. 34, 129 N.E.2d 553.

'It is only where the evidence is without conflict and can lead to but one conclusion, and the trial court has reached an opposite conclusion, that the decision of the trial court will be set aside on the ground that it is contrary to law.' Pokraka v. Lummus Co. (1952), 230 Ind. 523, 104 N.E.2d 669.

In this context we turn to the relevant law and the facts.

The primary rule long established in Indiana is that the determination of whether one is an independent contractor must be made upon a consideration of all the facts and circumstances of the given case. No single rule or checklist can be formulated upon which the relationship[159 Ind.App. 482] of the parties can be unfailingly determined. Nash v. Meguschar (1950), 228 Ind. 216, 91 N.E.2d 361; Allen v. Kraft Food Co. (1948), 118 Ind.App. 467, 76 N.E.2d 845.

In Arthur v. Arthur (1973), Ind.App., 296 N.E.2d 912, this court recently quoted with approval the following general definition of 'independent contractor' previously set forth in Clark v. Hughey (1954), 233 Ind. 134, 136--137, 117 N.E.2d 360, 361:

'Perhaps one of the most frequently quoted is to the effect that an independent contractor is one who, in exercising an independent employment, contracts to do certain work according to his own methods, and without being subject to the control of his employer, except as to the product or result of his work.' 27 Am.Jur., Independent Contractors, § 2, p. 481.

'When the person employing may prescribe what shall be done, but not how it is to be done, or who is to do it, the person so employed is a contractor and not a servant. The fact that the work is to be done under the direction and to the satisfaction of certain persons representing the employer, does not...